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Terms of Use - Updated 2024-04-07

CloudHiro a brand of SHOOMSOFT LTD ("CHI" or "us", "our", "we") provides Cloud Cost Optimization (FinOps) platform (the "Platform") and makes the Platform available to its customers on a Software-as-a-Service basis (the "Services").

These Terms of use (the "Terms" or "Terms of Use") govern the access and use of the Platform and/or Services by any entity that has subscribed to the Services (the "Customer" or "you"). We provide the Services subject to the conditions set forth in these Terms below. No changes or variations may be done to these Terms unless we have approved them in writing and in advance.

The subscription to the Services has been and/or shall be made by the Customer using an order form and/or purchase order and/or any other subscription form specifying the features of the Service and the terms and conditions applicable to the Customer’s subscription (collectively: the "Order"). In the event of any discrepancy between these Terms and the Order, the Order shall prevail, except that these Terms shall govern all issues relating to intellectual property rights, warranty, indemnity and liability issues unless specifically determined otherwise in the Order.

We reserve the right, at our discretion, to change and/or update these Terms at any time. Such change will be effective seven (7) days after posting the revised Terms on our Websites, and your continued use of the Services thereafter means that you accept those changes and/or updates.

 

LICENSE TO USE THE SERVICES

Subject to all of the terms and conditions of these Terms of Use and payment of all fees payable to CHI by the Customer, CHI hereby grants to the Customer, for the period during which the engagement between the parties shall be in effect, a limited, non-sublicensable, nonexclusive, nontransferable right to use the Platform and the Services for the Customer’s internal business purposes (the "License").

CHI and its affiliates, suppliers and licensors own and retain all right, title and interest in and to: (i) the Platform and the Services, including all copies, components, upgrades, modifications, enhancements and derivative works thereof, including all Intellectual Property Rights embodied therein or related thereto; (ii) all of the service marks, trademarks, trade names or any other designations associated with the Platform and/or the Services; and (iii) all copyrights, patent rights, trade secret rights and other proprietary rights relating to the Platform and the Services. The Customer acknowledges and agrees that it shall have no rights with respect to any of the foregoing other than the rights expressly set forth in these Terms. "Intellectual Property Rights" means collectively, rights under any patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights, whether registered, pending or un-registered

The Customer will not (and will not allow any third party to): (i) modify, translate, decompile, disassemble, reverse compile or reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Platform and/or Services, (ii) modify, copy or create derivative works based on the Platform and/or Services (iii) except as expressly provided in these Terms, provide, sell, give, rent, lease, lend, loan, distribute, transfer, use for timesharing or service bureau purposes or otherwise use or allow others to use the Platform and/or Services for the benefit of any third party, (iv) use any robot, spider, other automated device to monitor or copy any content from the Services, or (v) use the Platform and/or Services, or allow the transfer, transmission, export, or re-export of the Platform and/or Services or portion thereof, in violation of any Israeli and/or U.S. or any other applicable export control laws or regulations.

CHI shall hold the Customer harmless from liability to third parties resulting from infringement by the Platform and/or Services of any patent issued on or before delivery of such Platform and/or Services or any copyright or misappropriation of any trade secret, provided CHI is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and settlement; CHI will not be responsible for any settlement it does not approve in writing. If the Platform and/or Services become or in CHI’s opinion are likely to become the subject of an infringement claim, CHI may, at its option and expense, either: (a) procure for the Customer the right to continue using the Services, (b) replace or modify the Services so that it become non-infringing, or (c) terminate the engagement between CHI and the Customer (and neither party shall have any right and/or claim with respect to such termination). The foregoing obligations do not apply with respect to the Platform and/or Services and/or portions or components thereof: (i) made in whole or in part in accordance to the Customer’s specifications; (ii) that are modified after delivery by CHI; (iii) combined with other products, processes or materials where the alleged infringement relates to such combination; (iv) where the Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where the Customer’s use of the Platform and/or Services is not strictly in accordance with these Terms. The Customer will indemnify CHI for all damages, settlements, attorneys’ fees and expenses related to the use or distribution of the Platform and/or Services by the Customer or its end-users excluded from CHI’s indemnity obligation set forth herein.

It is understood that Customer and its Permitted Users (as defined below), may, at their sole discretion, provide CHI with suggestions and/or comments with respect to the Services ("Feedback"). The Customer represents that the Customer and its Permitted Users (as defined below) are free to do so and that they shall not provide CHI with Feedback that infringes upon third parties’ Intellectual Property Rights. The Customer further acknowledges that CHI may use the Feedback at its discretion, without limitation, and without being obliged to make any payment or give credit to the Customer and its Permitted Users (as defined below).

 

SUPPORT AND MAINTENANCE

While the License remains effective and the applicable fees are paid to CHI by the Customer, CHI or any of its affiliates will use reasonable commercial efforts to provide the Customer with the support and maintenance services for the Services as described in the Company’s then standard maintenance and support services terms and conditions.

 

ACCOUNT SECURITY

A customer account will be created in connection with Customer’s use of the Services (the "Account"), to be accessed and/or used solely by employees, agents and independent contractors of the Customer who are explicitly authorized by Customer to use the Services and for whom subscriptions to the Services have been purchased (each a "Permitted User" or "User"). The Customer acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify CHI in writing if the Customer becomes aware of any unauthorized access or use of Customer’s Account or the Services. The Customer shall ensure that the Permitted Users comply with the terms of these Terms of Use and shall be solely responsible for any breach of these Terms of Use by a Permitted User.

You shall not violate or attempt to violate the security of the Services. Accordingly, you shall not: (a) access data or materials not intended for you; (b) log into a server or account which you are not authorized to access; (c) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (d) attempt to interfere with service to any user, host or network. Upon receiving a password and Account designation, you are fully responsible for maintaining the confidentiality of the Account, and are fully responsible for all activities that occur under your password or Account. By using the Services, you understand that data and communications, including e-mail and other electronic communications, may be accessed by unauthorized third parties when communicated over the Internet and hereby irrevocable waive any claim against CHI relating to such unauthorized third party access.

 

PRIVACY POLICY

By using the Services, the Customer agrees to our privacy policy, available at https://www.cloudhiro.com/pp, which is incorporated herein by reference and made an inseparable part of these Terms.

OWNERSHIP

In these Terms, the content available through the Services, including all information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called "Content". Content provided by the Customer or its Users, is called "Customer Content". Customer Content is owned by the Customer and/or its clients. CHI's right with respect thereto is limited to using the Customer Content solely for the purpose of providing Customer with the Services. Notwithstanding, CHI may use aggregated anonymized data, from time to time, for analytics, improvement of the Services and internal purposes ("Aggregated Data"). Aggregated Data may include data derived from the Customer Content, provided that Aggregated Data does not identify or trace the Customer or any of the Customer’s clients and/or Users.

All right, title, and interest in and to the Platform is and will remain the exclusive property of CHI, its affiliates and its licensors. CHI remains exclusive owner of all Intellectual Property Rights relating to its Content and all of CHI’s Content is protected by applicable copyright, trademarks and other intellectual property rights laws. The rights of CHI include without limitation rights to (i) the Services developed and provided by CHI; and (ii) all software and/or products associated with the Services. Nothing in these Terms assigns or conveys to Customer or to any of its Users in any manner any right in or to the CHI Services or the CHI Content. Except to the minimum extent otherwise expressly permitted under copyright law, no copying or exploitation of material from the Services is permitted without the express written permission of CHI and any other applicable copyright owner. These Terms do not grant Customer the right to use any branding or logos used in our Services. Customer will not remove, modify or obscure any intellectual property or other proprietary notice or other notice displayed or included in CHI’s Services or Content.

 

CUSTOMER DATA; CUSTOMER CONTENT

CHI does not claim any ownership interest in your Customer Content, but we do need the right to use your Customer Content to the extent necessary to provide the Services, now and in the future.

Your Content and your Customer Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage your Customer Content may cause to you, to any of your Users or any other third party. Although we have no obligation to do so, we have the absolute discretion to remove, screen or edit without notice any Customer Content posted or stored on the Services, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any Customer Content you post or store on the Services. The Customer acknowledges that the Platform and/or Services does not operate as an archive or file storage service and that the Customer is solely responsible for the backup of Customer Content.

By posting or distributing Customer Content to or through the Services, you (a) grant CHI and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from any Aggregated Data derived from such Customer Content; (b) represent and warrant that: (i) you own and control all of the rights to the Customer Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that Customer Content, to or through the Services; and (ii) the use and posting or other transmission of such Customer Content does not violate these Terms and will not violate any rights of or cause damage to any person or entity.

USE OF THE SERVICES

You may be required to provide information or material about your entity, business or services as part of the registration process prior to using our Service. You represent, warrant and agree that: (a) such information and material whether submitted during the registration process or thereafter throughout the continuation of the use of the Service are true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete.

The Platform and/or Services may not be copied, modified, adapted, translated, reverse engineered, reproduced, duplicated, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of CHI. You may not create derivative works of, display or distribute any portion of CHI’s Services or Content for any purpose, nor may you authorize or permit any third party to do any of the foregoing.

You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of CHI without express written consent. Any unauthorized use terminates the permission or the License granted by CHI to you immediately.

FEES

The Customer shall pay CHI the Fees set forth in the applicable Orders on the payment dates set forth therein.

Fees and any other charges for the use the Services may be changed from time to time. If we change them, we will give you at least 30 days’ notice, provided that no changes shall be made with respect to existing Orders unless agreed in writing by CHI and the Customer.

All amounts due under these Terms shall be paid in full without any deduction or withholding. Monetary obligations of the Customer cannot be set off and/or upheld by the Customer in any manner or event and shall survive termination or expiration of any Order until receipt of full payment by CH.  The Customer shall not be entitled to assert any credit, set-off, deduction, counterclaim or abatement of any nature whatsoever against CHI in order to justify withholding payment of any such amount in whole or in part.

Each party shall be responsible for its own taxes.

 

MODIFYING CHI SERVICES

CHI reserves the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the Services, with or without notice and in its sole discretion. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. We may occasionally take the necessary steps to improve the Service or any aspect of it, substitute a new service for one of the existing Services, or discontinue or suspend one of the existing Services. Information about the new services and/or changes will be included on our Websites. The use of new services will be governed by these Terms of Use. We may add or remove functionalities or features, and we may suspend or stop a Service altogether. You agree that CHI shall not be liable to you for any modification, general suspension or discontinuance of any Services.

CHI may, in its sole discretion, refuse or restrict anyone from access to any or all of the Services at any time. CHI may and will terminate your Service immediately, if, in its sole discretion, CHI believes that your conduct fails to conform with these Terms of Use. If you use, or attempt to use the Services for any purposes other than its intended purposes (including without limitation by tampering, hacking, modifying or otherwise corrupting the security or functionality of the Services), you may also be subject to civil and criminal liability.

 

TERM AND TERMINATION

The engagement between CHI and the Customer shall be in effect during an undefined period unless the Order provides otherwise (the "Term"). During the Term, either party shall have the right to terminate the engagement between the parties for convenience upon 30 days' prior written notice to the other party, unless the Order specifies a minimal term of engagement between the parties (in which event either party may terminate the engagement for convenience as provided above upon the expiration of such minimal term).

Notwithstanding the above, CHI may terminate and/or suspend your Services immediately, without notice, if there has been a violation of these Terms of Use or in case of any delay of 7 days in payment of our Service fees.

COMPLIANCE WITH LAWS

You may use the Services only for lawful purposes. The Services are subject to, and you agree that you shall at all times comply with, all applicable local, state, national, Federal, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Services. This obligation includes your agreement to comply with all applicable laws, including without limitation, rules relating to the export of technical and other data from the United States (and from your country if you are not located in the United States) and your agreement not to export or re-export any such data or any other content or materials in violation of such laws, rules or regulations without first obtaining all necessary licenses, consents and approvals therefore.

You agree to indemnify and hold us harmless from any claims, losses or damages, including attorney and any investigation fees, howsoever arising or resulting from your breach of any part of the above warranties.

 

WARRANTY DISCLAIMER

THE CUSTOMER’S USE OF THE SERVICES IS AT ITS SOLE RISK AND AT ITS OWN FREE WILL. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS ABOVE, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. CHI DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. CHI MAKES NO WARRANTY AND DISCLAIMS ALL LIABILITY REGARDING THE COMPLETENESS, ACCURACY, CONSISTENCY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES OR SECURITY OF THE PLATFORM AND/OR SERVICES, AND FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. 

CHI IS NOT RESPONSIBLE OR LIABLE FOR HARM THAT RESULTS FROM CUSTOMERS’ USE OF THE SERVICE. CHI HAS NO LIABILITY FOR THE DELETION OF OR THE FAILURE TO STORE ANY CONTENT AND COMMUNICATIONS MAINTAINED BY THE SERVICES.  CHI’S RESPONSIBILITY EXTENDS SOLELY TO THE CUSTOMER AND CHI TAKES NO RESPONSIBILITY OR LIABILITY HOWSOEVER ARISING RELATING TO ANY OF THE CUSTOMER’S CLIENTS, PARTNERS OR OTHER THIRD PARTY.

 

LIMITATION OF LIABILITY

 

IN NO EVENT SHALL CHI OR ITS SUPPLIERS OR LICENSORS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), ARISING OUT OF THE USE OF OR INABILITY TO USE THE PLATFORM, THE SERVICES OR ANY OTHER SUBJECT MATTER OF THESE TERMS, FOR ANY: (I) INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS), (II) MATTERS BEYOND ITS REASONABLE CONTROL, (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS, OR (IV) AMOUNTS EXCEEDING IN THE AGGREGATE THE FEES PAID TO CHI BY THE CUSTOMER DURING THE THREE (3) MONTHS' PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CHI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. 

 

THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE SERVICES AND/OR THE PLATFORM, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THE SERVICES AND/OR THE PLATFORM.

CONFIDENTIALITY

The term "CHI Confidential Information" includes without limitation: (a) all of CH’s specifications, materials, guidelines and documentation relating to the Services; (b) rates and any other business or financial information relating to CHI and its Services; (c) any other information designated in writing by CHI as "Confidential" or an equivalent designation; and (d) any information made available to the Customer by CHI that is confidential by its nature.

The Customer undertakes that it will use CHI Confidential Information and all other data relating thereto solely for the purposes using the Services and that it will not, at any time, use or disclose CHI Confidential Information, whether directly or indirectly, to any third party without the prior written consent of CHI. The foregoing is without prejudice to the provisions of any non-disclosure agreement executed between CHI and the Customer, if any.

 

INDEMNITY

The Customer agrees that CHI shall have no liability whatsoever for any use the Customer makes of the Service.

In addition to the above, the Customer agrees to indemnify, defend and hold CHI, its agents, affiliates, subsidiaries, directors, officers, employees and applicable third parties (e.g. relevant advertisers, partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from any of the following: (i) the Customer's and/or any of its Users use of the Services and/or the Customer's breach of any term of these Terms of Use; (ii) brought by any third party regarding the Customer information or any Customer Content, (iii) the violation by the Customer and/or any of its Users of these Terms of Use or of an intellectual property or other right of any third party, or (iv) any acts or omissions performed by the Customer which were the cause of such claim. The Indemnified Persons will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any claim for which you are required to defend, indemnify or hold harmless the Indemnified Parties ("Indemnified Claim"). You may not settle any Indemnified Claim without the prior written consent of the concerned Indemnified Persons. Your indemnity above shall not apply to liabilities or claims arising as a direct result of CH's willful misconduct.

 

PUBLICITY

The Customer agrees that CHI may use the Customer's name and logo in presentations, marketing materials, customer lists, financial reports and web site listings of customers.  

 

GENERAL

When you use the Services, or send e-mails or other electronic messages to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or other electronic channels. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Israel. The competent courts in Tel-Aviv-Jaffa, Israel shall have sole and exclusive jurisdiction regarding any dispute or claim arising hereunder.

You may not assign your rights under these Terms of Use. However, CHI may freely assign these Terms of Use, without the need for approval.

These Terms of Use together with the Order(s) constitute the entire agreement between the parties hereto, and supersede all prior communications, representations or agreements, oral or written, with respect to the subject matter hereof and has been induced by no representations, statements or agreements other than those herein expressed. 

Neither party shall be liable for any failure or delay in performing its obligations under these Terms, other than payment obligations, due to a Force Majeure Event (as defined below), provided that such party takes diligent action to perform its obligations as promptly as possible after the condition has abated. "Force Majeure Event" means any cause preventing either party from performing any or all of its obligations which arises from or is attributable to strikes, lock-outs or other industrial disputes, nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage, period of national mourning, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, drought, earthquake, storm, lightning, epidemic, the existence of hazardous waste, unforeseen subsurface conditions, sabotage, explosions, and, where they are beyond the reasonable control of the party so prevented, any other acts, events, omissions or accidents.

If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. Waivers and consents with respect to any provision of these Terms of Use must be in writing. Failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. The section headings used in these Terms of Use are for convenience only and have no legal or contractual effect.

 

Last updated April 7, 2024  

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